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2009 DIGILAW 176 (CAL)

Sk. Rafi @ Rafiq v. STATE OF WEST BENGAL

2009-03-04

G.C.GUPTA, KISHORE KUMAR PRASAD

body2009
Judgment :- Prasad, J. (1) This appeal is directed against the judgment and order of conviction dated. 31.7.1990 passed by the learned Additional Sessions Judge, 1 st Court, Midnapore in Sessions Trial Case No. IV of December, 1989 arising out of G.R.Case No. 78 of 1984 by which the appellant was convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The appellant was heard on the question of sentence and thereafter by an order passed on the same date that is on 31.7.1990, he was sentenced to suffer imprisonment for life. (2) Being aggrieved by the orders of conviction and sentence passed by the learned Trial Court, the appellant has preferred the present appeal. (3) Prosecution version as unfolded during trial in a nutshell is as follows: - In the night of 29/30.1.1984, some miscreants drove to the hotel of Suresh Chandra Biswas (P.W. 1), father of the deceased at Purba-Srikrishnapur within the limits of Sutahata Police station, Midnapore and demanded food and drink. Since the hotel business was closed, they could not.be obliged and this very much infuriated the miscreants. They left for another hotel. Later, at the barking of dogs, P.W. 1 woke up, opened the door and saw some unknown miscreants there who were shouting as to why food and drink were not supplied. The miscreants then started firing and injured P.W. 1 and thereafter shot the son of P.W. 1, the deceased Subrata Biswas, which resulted in his death instantly. The incident was watched by the mother of the deceased (P.W. 2) and the younger sister of the deceased, namely, Sujata (P. W. 3), who during the course of trial was tendered only by the prosecution for cross-examination. Some neighbours later came to the house of P.W. 1 to whom P. W. 1 reported the incident. Sometimes after, Sukdeb Ghosh (P.W.5), the owner of the "Ma Kali" Hotel situated slightly on the western side of the hotel of P.W 1 came to the house of P.W. 1 and told that she knew Pran, driver of the ambassador car who along with three others came to his hotel and there were other persons ajso in the car. Sometimes after, Sukdeb Ghosh (P.W.5), the owner of the "Ma Kali" Hotel situated slightly on the western side of the hotel of P.W 1 came to the house of P.W. 1 and told that she knew Pran, driver of the ambassador car who along with three others came to his hotel and there were other persons ajso in the car. There was positive assertion by P. W. 1 against one Charu Chandra Das, a neighbour of P.W 1, who was alleged to have conspired with the miscreants to kill him and his son. (4) P.W. 1 came to Sutahata Police Station and lodged complaint at 05.15 hours on 30. 1. 1984. On the basis of First Information Report (FIR) of P.W. 1 (exhibit1/2), a case being No. 10 dated. 30.1.1984 under Sections 302/ 307/324/34 of the Indian Penal Code and 25/27 of the Arms Act was registered against unknown persons despite mentioning the name of two persons in the F.I.R. (5) " After registering the case, the investigating agency took up investigation. (6) After completion of investigation, charge sheet under Section 302/ 34 of the Indian Penal Code was submitted against the appellant only. (7) The case was committed to the Court of Sessions. (8) In the Trial Court, the prosecution examined as many as nine witnesses of whom P.W. 1 is the father of the deceased ; P.Ws. 2 and 3 are the mother and sister of the deceased respectively; P. Ws. 4 and 5 are the two neighbours of P.W. 1 who had come on the spot immediately after the occurrence; P. W. 6 is the owner of the ambassador car by which the miscreants had come to the hotel; P.W. 7 is the then Judicial Magistrate, Tamluk who held the Test Identification Parade of the appellant on 21.1.1987 at Tamluk Sub- Jail and before whom P.W. 2, the mother of the deceased, had identified the appellant as one of the miscreants of her husbands assailants and P.Ws. 8 and 9 are the two investigating officers. (9) Apart from leading oral evidence, the prosecution also tendered and proved large number of exhibits which were marked as exhibit 1 to 8 and Mat exhibit I to III. (10) Though the appellant was examined under Section 313 of the Cr.P.C., yet there was no adduction of evidence by him. 8 and 9 are the two investigating officers. (9) Apart from leading oral evidence, the prosecution also tendered and proved large number of exhibits which were marked as exhibit 1 to 8 and Mat exhibit I to III. (10) Though the appellant was examined under Section 313 of the Cr.P.C., yet there was no adduction of evidence by him. (11) The defence version as it appears from the trend of cross-examination of P.Ws. and from the answer given by the appellant in reply to the question put to him while examining under Section 313 of the Cr.P.C. was that the appellant is innocent; that he has been falsely implicated and he was shown to P.W. 2 before Test Identification Parade. (12) The learned Trial Judge disbelieved the defence version. The learned Trial Judge after considering the oral and documentary evidence on record and hearing the learned Counsel for the parties passed the order of conviction and sentence against the appellant as indicated hereinabove. (13) Learned Counsel appearing for the appellant vehemently submitted that there is no evidence on record to hold that the appellant was having any common intention and there is no evidence on record from which a common intention could be inferred. The evidence of the prosecution is totally lacking with regard to the role played by the appellant and from the evidence on record it is clear that there is no eye witness to the incident and the reasons assigned by the learned Trial Court simply on the basis of identification of the appellant by P. W. 2 as one of the miscreants of her husbands assailants amongst others are clearly erroneous and unsustainable and cannot be accepted in the absence of chain of circumstances showing the guilt of the appellant for the offence punishable under Sections 302/34 of the Indian Penal Code for commission of murder of Subrata Biswas. (14) Learned Counsel further contended that the prosecution must fail by holding that it was a case of blind murder and not proved by any convincing and clinching evidence. (15) Per contra, learned Counsel appearing, for the State-respondent submitted that though this is a case of circumstantial evidence, the prosecution has been able to establish the chain of circumstances which points to the guilt of the appellant and as such the findings of the learned Trial Judge ought to be confirmed. (15) Per contra, learned Counsel appearing, for the State-respondent submitted that though this is a case of circumstantial evidence, the prosecution has been able to establish the chain of circumstances which points to the guilt of the appellant and as such the findings of the learned Trial Judge ought to be confirmed. (16) There are some disturbing features in this case which we must mention before examining the merits of the matter. The investigation in this case did not proceed, as it ought to and there appears to be soft-pedalling of the whole case. (17) The order sheets of the Court of learned Committing Magistrates, marked Exhibit 8 go to show that on 1.2.1984, the F.I.R. named two accused namely, Charu Chandra Das and Pran @ Prasanta Pramanik (driver of the ambassador car) along with five other suspects namely, Syed Abdul Hannan, Syed Habibur Rahman, Sripati Charan Jana, Subhasis Adhikary and Subrata Kumar Sen were brought under arrest before the Court of learned Committing Magistrate and on that date as per prayer of the I.O., the FIR named accused Charu Chandra Das was remanded to police custody for five days pursuant to order of the learned Magistrate. (18) The said FIR named accused was produced before the Court of learned Magistrate on 6.2.1984 after the expiry of the period of police remand and thereafter be was remanded to judicial custody. Pursuant to the order of the learned Magistrate on the prayer of I.O., the six suspects brought under arrest on 1.2.1984 excepting Charu Chandra Das were placed in Test Identification Parade on 13.2,1984 at Sub-jail Tamluk and in the said Test Identification Parade, the witness Suresh Chandra Biswas (P.W. 1) had only identified the two suspects namely, Sripati Jana and Pran @ Prasanta Pramanik as the occupants of the car who on the night of the incident along with the others demanded wine from him. P.W. 2 also attended the said Test Identification Parade. She failed to identify any of the aforesaid suspects. P.W. 2 also attended the said Test Identification Parade. She failed to identify any of the aforesaid suspects. On 29.2.1984 another accused Billapadda Kalsa was brought under arrest before the Court of learned Magistrate and pursuant to order of the learned Magistrate on the prayer of the I.O., the said Billapadda was placed in Test Identification Parade on 13.3.1984 at sub-jail Tamluk and the witness Suresh Chandra Biswas (P.W. 1) had only identified him as one of the persons who came to his hotel along with two other persons on the night of the incident. P.W. 2 also attended the said Test Identification Parade but she failed to identify Billapadda. (19) Despite such prima facie materials available during the course of investigation, S.I., P. R. Dutta (P. W. 8) under the supervision of Additional S.P., Midnapore submitted final report on 31.5.1,986, which was received by the Court of learned Magistrate on 5.7.1986 that is about 2 and 1/2 years after the incident of this case. (20) In course of said investigation by P.W. 8, the complicity of the present appellant did not transpire and P.W. 8 admitted the said fact in his evidence before Court. (21) The said final report was not accepted by the learned Committing Magistrate and the learned Magistrate after hearing the informant and on perusal of the materials collected in the Case Diary passed order on 2.8.1986 directing S.P. Midnapore for further investigation by a competent officer of Detective Department, D.I.G.D.D., West Bengal. (22) Accordingly, P.W. 9, the then Inspector, D.D.I., Tamluk took up further investigation of this case on 5.8.1986. P. W. 9 made a prayer before the Court of learned Committing Magistrate on 23.12.1986 for showing arrest of this appellant who was detained in jail in connection with Sutahata Police Station Case No. 1 (9) 86 and other cases. The said prayer of P.W. 9 was considered by the learned Magistrate and the appellant was shown arrested in this case pursuant to order of the learned Magistrate on 23.12.1986. On the basis of production warrant issued by the learned Magistrate, the appellant was produced before the Court of learned Magistrate on 26.12.1986 and 8.1.1987 from jail. The said prayer of P.W. 9 was considered by the learned Magistrate and the appellant was shown arrested in this case pursuant to order of the learned Magistrate on 23.12.1986. On the basis of production warrant issued by the learned Magistrate, the appellant was produced before the Court of learned Magistrate on 26.12.1986 and 8.1.1987 from jail. Pursuant to order of the learned Magistrate, Test Identification Parade of this appellant was held in sub-jail on 21.1.1987 where Suresh Biswas (P.W. 1) failed to identify the appellant but his wife Suniti Rani Biswas (P. W. 2) identified the appellant No. 1 only by touching his head without disclosing anything about the role played by him during the course of crime. (23) Sri N. C. Chakraborty, the then learned Magistrate (P.W. 7) who held Test Identification Parade admitted in his evidence that the appellant complained to him in course of Test Identification Parade that he was shown to the witness prior to Test Identification Parade. (24) Even though other suspects namely, Sripati Jana, Pran @ Prasanta Pramanik and Billapadda Klsa were identified in Test Identification Parade as the participants in the crime long before the identification of this appellant, they and the FIR named accused Charu Chandra Das were not charge sheeted in this case although their case also stood on the same footing like the present appellant. (25) The record shows that the investigating officers created a mess by not bringing on record the actual culprits and have exhibited remiss and/or deliberately omitted to do what they ought to have done. (26) Similarly, the order of the learned Committing Magistrate dated 1.7.1988 discharging three of the identified accused and the FIR named accused simply on the basis of the prayer of the I.O. made in the relevant column of the charge sheet without affording opportunity to the informant of being heard as also without going through the available materials collected in the Case Diary as well as on record, in our considered opinion is clearly not in consonance with law. We regret to find that there is complete non-application of mind on the part of the learned Committing Magistrate and he has passed order discharging the FIR named accused and the accused who were identified during Test Identification Parade as the participants in the crime which is totally unwarranted. We regret to find that there is complete non-application of mind on the part of the learned Committing Magistrate and he has passed order discharging the FIR named accused and the accused who were identified during Test Identification Parade as the participants in the crime which is totally unwarranted. (27) Keeping in mind the above disturbing features of this case, we shall now examine the materials on record in the light of the arguments addressed by the learned Counsel on both sides. (28) The factum of murder of Subrata Biswas in the night of 29/30.1.1984 at his house is not in dispute. There is overwhelming materials on record both oral and documentary to show about the homicidal death of the deceased Subrata at the place and time as a result of gunshot injury inflicted upon him by the miscreants. P.Ws. 1 and 2, the parents of the deceased deposed clearly that on the fateful night of the incident their son Subrata, succumbed to injury as a result of gunshot injury inflicted upon him by some miscreants in a room of their house. P. Ws. 4 and 5, the neighbours of P. W. 1 who came to spot on hearing the alarm of P.W. 1 also deposed that they found the deceased in injured condition lying on the floor. The injuries and opinion as depicted in the Post Mortem Examination report dated. 30.1.1984 marked ac exhibit 7 clearly goes to show that the cause of death of the deceased was due to gunshot injury and the wounds sustained by him were homicidal and anti-mortem in nature. The Doctor found penetrating gunshot wounds through the chest which resulted in fracturing of ribs. (29) In view of the above, the conclusion which can be safely arrived at is that the deceased was murdered by someone in the night of 30.1.1984 and it is undoubtedly a dastardly and diabolic murder. (30) The next question which arises for determination is whether the appellant was one of the miscreants having common intention to murder the deceasedalong with other miscreants and whether there is evidence on record from which a common intention could be inferred against the appellant. (31) The appellant in this case, admittedly, was not known to the parents of the deceased namely, P.Ws. 1 and 2 before the occurrence. (31) The appellant in this case, admittedly, was not known to the parents of the deceased namely, P.Ws. 1 and 2 before the occurrence. As per FIR (exhibit 1/2) lodged by P.W.1, besides the name of 2 accused persons namely, Charu Chandra Das and Pran (discharged from this case on the ground of not charge sheeted), there is nothing about average age, height and feature of other miscreants who according to P.W. 1 started firing towards him resulting injury on his person. That apart, there is nothing in the FIR to show or suggest about the existence of any glowing hurricane lantern either at the entrance door of the house of the P.W. 1 or inside the rooms of his house. The averments made in the F.I.R. also do not contain anything to show that P.W. 2 was able to recognise one of the miscreants amongst others with the glowing hurricane lantern when they started firing towards her husband P.W. 1. (32) To establish the identity of the appellant as one of the misereants who came at the hotel of P.W. 1 along with other miscreants when firing towards P.W. 1 had been made, the police in course of further investigation got his Test Identification Parade conducted by P.W. 7, the then Judicial Magistrate, Tamluk on 21.1.1987 that is about three years after the date of incident. (33) We have already stated in the earlier part of the judgment that the appellant was shown arrested in this case on 23.12.1986 while he was in jaii custody in connection with other cases and he was produced before the Court of learned Committing Magistrate on 26.12.1986 and 8.1.1987 from the jail custody prior to his Test Identification Parade conducted by the learned Magistrate on 21.1.1987. P.W. 1, the father of the deceased had failed to identify the appellant during the Test Identification Parade but P.W. 2, the mother of the deceased had only identified the appellant as one of the assailants of her husband by touching her head without specifying any role played by the appellant. P.W. 1, the father of the deceased had failed to identify the appellant during the Test Identification Parade but P.W. 2, the mother of the deceased had only identified the appellant as one of the assailants of her husband by touching her head without specifying any role played by the appellant. There is nothing on record that necessary precautions were taken in the jail where the appellant was kept during this period to ensure that the identifying witness did not have any occasion to see the appellant and that on way from jail at Tamluk to the Court of learned Committing Magistrate on the two days of his production prior to Test Identification Parade, the face of the appellant was duly muffled and P.W. 2, who was also to appear to identify the appellant, had no occasion to see the appellant. (34) Apart from the aforesaid considerations, we may mention that P.W. 1 in his F.I.R. and P.W. 2 in her earlier statement recorded under Section 161 of Code of Criminal Procedure did neither give any description of the miscreants whom she has alleged to have identified in the course of firing towards her husband nor did she state that she was successful in recognising one of the miscreants of her husband with the glowing hurricane lantern. Besides that in the F.I.R. that there is no averment about any identification mark viz. stature of the appellant or whether he was fat or thin or of a fair colour or of black colour. Non-disclosure of the aforesaid material facts in the F.I.R. as also in her statement recorded under Section 161 of the Code of Criminal Procedure and non-seizure of the so called hurricane lantern by the I.O. during course of investigation create a reasonable doubt in the mind of the Court. Non-disclosure of the aforesaid material facts in the F.I.R. as also in her statement recorded under Section 161 of the Code of Criminal Procedure and non-seizure of the so called hurricane lantern by the I.O. during course of investigation create a reasonable doubt in the mind of the Court. The claims of P.W. 2 during the course of her examination-in-chief to the effect that she had seen the miscreants firing towards her husband firstly and thereafter by assailing him with knife on his shoulder have been clearly falsified by her own admission given during the course of cross-examination where she stated as follows : -"After I woke up hearing the barking of the dog, I remained in my room till I rushed to the room for my son, Subrata." (35) In these circumstances, it would be very unsafe to rely on the basis of single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. The learned Trial Judge ignored the fact that the identification was made at Test Identification Parade about three years after the incident and in view of such a long lapse of time, it is not possible for any human being to remember the features of the accused if she was not shown to accused prior to Test Identification Parade. (36) The complaint made by the appellant to that effect before the learned Magistrate during Test Identification Parade and also before the learned S.D.J.M. immediately afterTest Identification Parade in writing could be stated to be reasonably probable. It is well settled that the evidence of identification can only be relied upon if all the chances of suspects being shown to the witnesses prior to their identification test are eliminated. (37) To ensure that the prosecution has to adduce link evidence to the effect that right from the time of arrest till being lodged in jail, the faces of suspects were kept veiled and no one had the opportunity to see them. This has not been done in the instant case. No link evidence has been adduced by the prosecution to prove this fact. Since the burden of showing that right from arrest till being lodged in jail, the face of the appellant was throughout kept veiled was on the prosecution and as it has failed to discharge this burden, the evidence of identification is rendered worthless in the instant case. No link evidence has been adduced by the prosecution to prove this fact. Since the burden of showing that right from arrest till being lodged in jail, the face of the appellant was throughout kept veiled was on the prosecution and as it has failed to discharge this burden, the evidence of identification is rendered worthless in the instant case. We are reinforced in our view by the decision reported in the case of Asharfi v. The State, Respondent, reported in AIR 1961 Allahabad 153, wherein in paragraph 35, James, J. spoke for the Division Bench, thus -"it is the duty of the prosecution to show that from the time of the arrest of an accused person to the time of his admission into the jail, precautions were taken to ensure that he was not seen by any outsider." (38) In the aforesaid case the Court also observed in paragraph 33 that the plea of shown does not require to be affirmatively established; it is sufficient if the accused can create at reasonable doubt in the mind of the Court. (39) The cumulative effect of the facts and circumstances of the case is that no implicit reliance can be placed in the identification made by a single witness namely, P.W. 2. (40) In the end, taking advantage of the suggestions put to P.W. 1 by the learned Counsel for the appellant before the trial Court, learned Counsel .or the State tried to impress us as the appellant has failed to make the suggestions plausible, an adverse inference can be drawn against the appellant. The suggestions may be noticed, which are as follows : "It is not a fact that my hotel was being used by the anti socials in drinking and merry making. It is not a fact that night, I with some anti socials took liquor, meat etc. in my hotel and there was mutual fights amongst us, which resulted in my injury and death of my son, Subrata by gun-shot. It is not a fact that to exonerate myself from this liability, I have falsely initiated this case." (41) We are not at all impressed by the aforesaid sweeping contention of the learned Counsel for the State-respondent. in my hotel and there was mutual fights amongst us, which resulted in my injury and death of my son, Subrata by gun-shot. It is not a fact that to exonerate myself from this liability, I have falsely initiated this case." (41) We are not at all impressed by the aforesaid sweeping contention of the learned Counsel for the State-respondent. We like to mention that these suggestions are the suggestions of the learned Counsel appearing before the learned Trial Court which have not been accepted by the appellant in course of recording his statement under Section 313 of the Code of Criminal Procedure. That apart, the onus of proving everything essential to the establishment of the charge against the accused lies upon the prosecution. The prosecution must stand on its own legs and it can not derive any advantage irrespective of whether or not the accused made out a plausible defence, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt. (42) As a result of the aforesaid discussion, what can be concluded is that the identification evidence of P.W. 2 in the instant case and outcome thereof is an unreasonable piece of evidence and on the basis of such evidence, it can not be said with any degree of certainty that this appellant is one of the miscreants having common intention to commit murder of the deceased. The identification evidence is the only evidence on which the appellant was convicted by the learned Trial Court. If this evidence is ignored, there is no other evidence on record to prove the participation of the appellant in the crime in so far as it relates to offence punishable under Section 302 read with Section 34 of the I.P.C. (43) For the reasons stated above, the impugned conviction and sentence awarded by the learned Trial Court cannot be sustained and deserves to be set aside. (44) The appeal as such is allowed. (45) The conviction and sentence imposed upon the appellant by the learned Trial Judge are set aside and the appellant is acquitted of the charge under Section 302 read with Section 34 of the I.P.C. framed against him. (46) The appellant, who was enlarged on bail as per order of a Division Bench of this Court on 27.8.1990, will now be discharged from the liability of his bail bond. (46) The appellant, who was enlarged on bail as per order of a Division Bench of this Court on 27.8.1990, will now be discharged from the liability of his bail bond. (47) Lower Court records with a copy of this judgment to go down forthwith to the concerned Trial Court for information and necessary action.